Written By: 程洁 Jie Cheng

Posted on: June 30, 2020

我与柯恩教授认识已经超过20年了。研究生时代曾听陈小平老师讲柯恩帮助六四学运人物的故事。入职清华后不久，我就见到了柯恩，听他回顾70年代与周恩来、邓小平会面的经历以及中国早期社会和法制状况，感觉像在阅读一本活的历史书。但我们真正有交集，源于对法律援助和政府信息公开的共同旨趣。

柯恩2002年前后访问北京时，我还在主持清华的公民权利救助法律诊所。当时地方政府都在大搞开发建设，农村和城市非法征地和暴力拆迁的情况非常严重。法律诊所接触和代理了很多失地农民、城市拆迁户和经租房主，包括后来成为维权斗士的刘正有、华新民等人。但此类案件的起诉和审理常常收到政府干预，很多朋友和同事私下认为法学院开展诊所教育是不务正业，宪法学者应当专注理论研究。但柯恩对诊所的工作一直赞许有加，给了我极大的鼓励。

我与柯恩的另一个交集源于政府信息公开研究。2003年非典疫情结束后，我参与了国信办有关信息自由与安全的立法研究。2003-4年我有幸作为富布莱特访问学者赴美，期间柯恩专门邀请我去外交关系委员会进行了公开讲座。2007年后，《政府信息公开条例》开始实施，立即引发了大量争议和诉讼，这些新的现象成为我们共同关注的领域。2009-2014年间，差不多每一年我都参加了中美司法与人权对话，与柯恩和其他中美专家一起讨论这个议题。

柯恩最近在反思自己”传教士“一样的中国法之旅。这是他的自谦。因为他不止是一位“教士”，而是开创北美当代中国法研究的”教父“级人物。我个人认为，较之法律教义学（doctrines)上的贡献，柯恩对中国法律道义论上（deontology)的贡献将更为持久。某种意义上，“传教士”思维反映的是美国法律移植和法律文化输出的传统范式。在社会多元和国际关系日渐多极的背景下，难免会遭到抵抗和质疑。但柯恩的传教之旅不同于20世纪上半叶的古德诺教授和庞德教授。柯恩虽然也担任政府顾问，但他始终保持了对不同政见者和各种异议人士的声援和法律援助。这使得柯恩成为一代道德典范，真正的以身传道者。各种研究表明，相比法律创制而言，法律道德的实现更为困难，也是中国未来更为需要的。

柯恩阅历丰富、学养深厚。我对他的了解大约犹如”盲人摸象“，只能是片面的。不妥之处，希望他原谅。也希望我们所有人的片段能够一起还原更加多面的柯恩。但有一点我很确定，就是柯恩虽然年届90，但他一直文以载道，火力全开。我要向他学习，也祝他初心不改，永葆青春。

I have known Professor Jerome Cohen for more than 20 years. When I was in graduate school, Professor Chen Xiaoping told me the story of Jerry helping the June 4th dissidents. Shortly after joining Tsinghua University, I got to meet Jerry in person. When he recounted his experience of meeting with Zhou Enlai and Deng Xiaoping in the 1970s and the early social and legal conditions in China, it was like reading a living history book. Later our paths crossed because of our common interest in legal aid and government information disclosure.

When Jerry visited Beijing around 2002, I was the supervisor of the Civil Rights Assistance Legal Clinic at Tsinghua. At that time, many construction projects were promoted by local governments. Illegal land acquisition and demolition triggered social unrest. The Legal Clinic was approached by many landless farmers, urban demolished households, and other affected homeowners, including Liu Zhengyou and Hua Xinmin, who later became well-known rights defenders. However, the registration and trial of such cases often encounter interferences and pressure from the government. Friends and colleagues of mine also believed that clinical education was a distraction from conventional legal pedagogy, and that constitutional scholars should focus on theoretical research. But Jerry always confirmed the importance of the work of the clinic, which gave me great encouragement.

Another common interest we share is government information disclosure. After the SARS epidemic in 2003 ended, I participated in the State Information Office’s research project on information freedom and security. In 2003-4, I was fortunate enough to visit the United States as a Fulbright scholar. Jerry invited me to give a public lecture at the Foreign Relations Committee. After 2007, the “Government Information Disclosure Regulations” began to take effect, causing lots of controversy and litigation. These new phenomena have also become areas of common concern to us. From 2009 to 2014, I participated in the Sino-US Judicial and Human Rights Dialogue almost every year and discussed this topic with Jerry and other experts from both countries.

Jerry has recently reflected on his own journey of Chinese law as a “missionary.” He is of course being modest: many think of him as not a “priest”, but a “godfather” figure who pioneered the study of contemporary Chinese law in North America. I personally think that Jerry’s contribution to the deontology of Chinese law will be more lasting than that of scholars of legal doctrines. To some extent, the “missionary” thinking reflects the traditional paradigm of transplanting American law and exporting legal cultures. In the context of social pluralism and the increasing multi-polarization of international relations, it is inevitable that they will be resisted and questioned. But unlike Frank Goodnow and Roscoe Pound in the first half of the 20th century, Jerry has always maintained solidarity with the dissidents and various minorities. This makes Jerry a moral icon and a true legal preacher. As other studies have demonstrated, the realization of legal ethics is more difficult than statutory enactment.

Jerry’s rich life experience is beyond any simple narrative. My understanding of him is almost like “blind men touching the elephant”, which can only be one-sided. I hope he will forgive me for the inadequacies. I also hope that all of us can restore a more multifaceted Jerry. But one thing I’m pretty sure is that even though Jerry is 90 years old, he has been the same intellectual with full passion for justice. I want to learn from him, and I wish him follow his own heart and stay young forever.

Follow

 Written By: Julie Qiu  and Wei Cui

Posted on: June 26, 2020

Peng Zhen speaking at a conference of the NPC Legal Affairs Commission

Since the COVID-19 epidemic broke out in Wuhan in January 2020, sub-national People’s Congresses (PCs) in many Chinese provinces and cities have announced policies regarding the control and prevention of the disease and economic recovery. Many of the policy documents promulgated have the same function and effect as local statutes (difang fagui), and have been pronounced as having the effect of law. But they often came with the title of “decisions” or “resolutions” (jueding).  Both in name and in the procedure of adoption, this particular parliamentary instrument is to some extent distinguishable from the adoption of local statutes under the Law on Legislation. In previous decades, it was seldom used independently in providing for individual’s legal rights and obligations.

To invoke potential comparisons with non-statutory parliamentary actions in Canada and other jurisdictions, we provisionally refer to these instruments as “resolutions”. The subnational parliamentary “resolutions” on COVID-19 that were adopted in February and March 2020 are related to the increasingly frequent exercise by Chinese PCs of their resolution power regarding “major issues” (zhongda shixiang jueding quan) in the last few years. This potentially important development has not been previously noted in Western media or scholarship. We offer a brief background on the history and legal basis of the resolution power.

Article 104 of China’s Constitution grants PCs above the county level the power to “discuss and decide” major issues in all fields of work in its jurisdiction. Article 44 (4) of Organization Law for Local People’s Congresses and Local People’s Governments at All Levels (Local Organizational Law) further provides that PCs above the county level have the powers to discuss and decide major issues in “politics, economy, education, science, culture, public health, protection of the environment and natural resources, and civil and ethnic affairs in their jurisdictions”. While these may be regarded as the Constitutional and fundamental legal basis for PCs’ resolution power, they clearly say little about the extent of the power, nor how it would be exercised. Instead PCs are granted discretion to make rules themselves regarding this aspect of their competence.

The powers of PCs in China are sometimes said to be divided into four types: legislative, supervisory, appointment and removal, and decision-making on major issues (the so-called
“Four Powers”). This conceptual division is attributed to Peng Zhen (in an important speech given in 1980) and has been kept in use by scholars in China. The evolving relationship of the resolution power to the other three parliamentary powers has gone through two periods.

1982-2013: the Resolution Power depended on the exercise of the other powers

PCs’ Resolution Power was written into the Chinese Constitution in 1982. However, from 1982 to 2013, the central roles of PCs were seen as performing their legislative and supervisory functions. Under the leadership of Jiang Zemin and Hu Jintao, resolutions were only used to render decisions related to legislative and supervisory procedures. Moreover, Jiang and Hu gave consistent emphasis to the legislative and supervisory powers of parliamentary bodies, relegating the resolution power to far lower prominence. For instance:

• On March 18, 1990, at the Third Session of the 7th National People’s Congress (NPC), Jiang Zemin stated that those important decisions of the Chinese Communist Party Central Committee that should be decided by the NPC must be submitted to the latter to go through the legal process so as to become the will of the state. The same principle should apply to subnational PCs. He then emphasized improving the functions of PCs, especially strengthening their legislative and supervisory
• On September 12, 1997, in the report to the 15th Party Congress, Jiang Zemin stated that it was necessary to integrate legislation with policy decisions on major issues in reform and development.
• On November 8, 2012, in the report to the 8th NPC, Hu Jintao reaffirmed that, in order to turn the Chinese Communist Party’s (CCP) proposals into the will of the state, PCs’ functions as the organ of state power need to be fully utilized, which involves the exercise of the powers of legislation, supervision, appointment and removal, and decision-making. He then emphasized legislative and supervisory work in particular, again leaving the resolution power to lower status.

Indeed, prior to 2013, Hu was the only CCP General Secretary who mentioned the four powers of PCs as a whole. Emphasis instead was reserved for legislative and supervisory powers. After the 7^th NPC, NPC Chairmen also seldom talked about the Resolution Power in public speeches, especially compared to the other parliamentary powers. PCs used the resolution instrument in relation to legislative activities mainly when they amended or repealed previous statutes. Newly enacted statutes generally assumed the names of ordinances (tiaoli) and measures (banfa).

2013-present: the Resolution Power was promoted to an unprecedent height

On November 12, 2013, the Third Plenum of the 18th NPC published the Decision on Major Issues to Comprehensively Deepening Reform. While this lengthy announcement was extensively parsed at the time for understanding Xi Jinping’s approach to law, one sentence buried in it eluded little attention. The Decision proposed to “improve the system of discussion and decision-making on major issues in People’s Congresses; governments at all levels shall report to the PC at the same level prior to making decisions on important issues.” As it turned out, this sentence heralded the entry of the parliamentary resolution power into political light, after decades of near invisibility.

In January 2017, the CCP General Office circulated a document titled “Implementation Opinions on Improving the System of Discussing and Decision-Making on Major Issues by People’s Congresses, and Reporting to People’s Congresses at Their Levels before Issuing Major Government Decisions” (《关于健全人大讨论决定重大事项制度，各级政府重大决策出台前向本级人大报告的实施意见》). This document was not made public, but as can be inferred from the lengthy title, there were two separate ideas: first, developing an institution for discussing and deciding on important policy issues within parliamentary bodies; and second, strengthening the practice of requiring the executive branch to report to PCs at same level before making major decisions.

1. Instituting parliamentary discussions and decisions over important issues (apart from legislation)

Since the 2017 CCP Implementation Opinions, among the 28 provincial PCs that already had procedural statutes regarding “discussing and decision-making on major issues” (DDMI), 17 amended such statutes, where they elaborated the scope of “major issues” in conformity to the Implementation Opinions and introduced further procedural details. Beijing, which had no DDMI statute before, also enacted one in 2017.

Notably, Article 16 of Zhejiang’s DDMI statute and Article 4 in Hubei’s DDMI statute both provide that Resolutions adopted according to DDMI procedures have the effect of law. That is, these provisions assert that PC resolutions possess the same effect as local statutes recognized under the Law on Legislation. Since 2017, the Zhejiang Provincial PC has passed three Resolutions regulating individual obligations directly. By contrast, there were no such Resolutions before 2017.

2. Requiring the executive branch to report to local PCs at before major policy decisions

In the past three years, five provincial PCs in China (Zhejiang, Anhui, Sichuan, Hubei and Guangxi) have introduced rules in their DDMI statutes that the executive branch should report to PCs at the same level before making decisions on major issues. In October 2018, the Beijing People’s Government released an informal document prescribing the policies that it would itself follow for reporting to the Standing Committee of the Beijing PC regarding major policy decisions.

On February 25, 2019, Xi Jinping presided over the second meeting of the Comprehensively Governing the Country by Law Committee. The meeting approved the Interim Regulation on Major Administrative Decision-Making Procedures (Draft), which was issued later by the State Council on April 20, 2019. Article 8 of this Regulation stipulates that when major administrative decisions fall within the scope of matters required by law to be deliberated and decided by the PC at the same level, or when there is a specific legal requirement for reporting to the PC, the “relevant procedures shall be followed.”

It is likely that the “relevant procedures” referred to here are to come from local DDMI statutes. Currently, with the exception of Xinjiang and Ningxia, all provincial PCs have issued DDMI statutes and listed the scope of major issues, based on the Local Organizational Law and the 2017 CCP Implementation Opinions. If a matter fits into the category of “major issues”, PCs can adopt Resolutions independently, while the executive branch can also make policy decisions. In the latter case, the executive branch should report to the PC at the same level and obtain approval before issuance of the policy.

As a result of these developments, the Resolution Power of Chinese parliamentary bodies has been promoted to an unprecedented height, in some ways even above the legislative and supervisory powers. PCs in prefectural cities may issue Resolutions with legal effects directly under DDMI statutes. If they opt for this procedure, cities can avoid submitting draft legislation to the provincial PC for approval before it comes into force (as provided in the Law on Legislation). Just as remarkably, there seems to be acceptance that PCs at the county level, while possessing no legislative power based on LL, can pass Resolutions on major issues with the effect of law in their jurisdiction. In short, insofar as major policy issues are concerned, there appears to be an emerging view that DDMI statutes preclude the application of the Law on Legislation, relax the procedural strictness on parliamentary lawmaking in lower-level PCs, and thereby grant extensive flexibility and discretion to these bodies.

References

Institute of Theory on China’s People’s Congress System  Decision-making Power of People’s Congress under Different Concepts, 中国人民代表大会制度理论研究会，《不同概念下的人大决定权》，专题探讨。

Sun Ying (2019), On the Dual Attributes of Decision-Making power of People’s Congress on Major Issues, Politics and Law, no. 2, p. 33, 孙莹，《论人大重大事项决定权的双重属性》，《政治与法律》2019年第2期, 第33页，

Follow

Written By: Wei Cui

Posted on June 25, 2020

On February 5, 2020, two weeks into the national lockdown to stop the spread of the novel coronavirus epidemic that had broken out in Wuhan, President Xi Jinping convened a meeting in Beijing of the Comprehensively Governing the Country by Law Committee (CGCLC) of the Central Committee of the Chinese Communist Party (CCP). The publicized agenda of the meeting contained disparate items, ranging from reforming judicial accountability, further entrenching the rule of law in China’s countryside, to using rule of law to enhance the business environment in Shanghai. The first item on the meeting agenda, however, was the approval of a CGCLC Opinion with the lengthy title, “CGCLC Opinion regarding Preventing and Controlling COVID-19 by Law, and Tangibly Protecting the Lives, Health and Safety of the People” (《中央全面依法治国委员会关于依法防控新型冠状病毒感染肺炎疫情、切实保障人民群众生命健康安全的意见》). This Opinion was not made public and presumably, like many other CCP documents, was intended to be read only by the relevant members of the high Party ranks. At least according to the official summary of the meeting offered by the Xinhua News Agency, Xi Jinping only argued that the government response to COVID-19 should make good use of law: he gave particular emphasis to strictly enforcing existing law to preserve social order, without explaining why the law was particularly relevant at this moment in an evolving crisis.

Yet this obscure February 5 meeting triggered an extraordinary response from sub-national legislatures across China. Just within the next week, People’s Congresses in 17 provincial-level jurisdictions enacted local legislations that laid out detailed government and societal measures for responding to the COVID-19 public health crisis, while stipulating the related rights and obligations of citizens and private parties. By the end of the months, 23 provinces have enacted such legislation. Even more impressively, 62 prefectural jurisdictions across China took similar legislative steps, largely independent of legislation in their respective provinces and often before provincial legislation. All of these legislative actions rapidly advanced without any move on the part of the National People’s Congress (NPC), traditionally the most prominent lawmaking body in China. Figures 1 and 2 below illustrate the geographical distribution of these provincial and city legislative responses across China.

Figure 1 Provincial COVID19 legislation

(color scheme reflects concentration of diagnosed COVID19 cases)

Figure 2 Prefectural COVID19 legislation

A reading of these subnational legislations reveals that there was clearly no blueprint or template for them. While the content of legislations adopted in difference provinces and cities displayed extensive overlaps—as one might expect for contemporaneous legislation that shared the same subject matter—the detailed drafting of the statutes substantially varied across jurisdictions, and there was a noticeable quantity of unique local policy elaborations. This, combined with the apparent absence of any national-level instruction (and especially in the absence of any NPC action), strongly suggests that the legislative outburst was not orchestrated or merely mechanically implementing some superior directive. Supporting this conclusion is also the fact that 8 out of 31 Chinese provinces, as well as 70 % of prefectural cities, did not enact local legislation. The decisions to adopt legislation appeared to be made independently by each jurisdiction.

This outburst of subnational legislation in February and March 2020 is remarkable not just in comparison to subnational PC’s regular level of activity, but also, and primarily, because there are three important reasons to think that subnational legislation was an especially appropriate instrument with which to implement COVID-19 response in China at this time.

First, like many other countries such as the U.S., Canada and Germany, the Chinese government’s response to the COVID-19 pandemic was decentralized. Other than a nationally organized effort to aid the province of Hubei (and the city of Wuhan in particular), the national government had a relatively small role to play in each province’s policy choices, whether regarding how to stop the spread of the coronavirus, or regarding how to pursue economic recovery. Post-pandemic policymaking in both the social and economic realms, therefore, is likely to be concentrated at the sub-national, and especially sub-provincial, level.

Second, because the response to COVID-19 is largely about mobilizing society—from social distancing and wearing masks to implementing safety measures in the workplace and sites of economic exchange—government policy especially needs to be public-facing. Enforcement by government agents is insufficient; the whole society needs to be mobilized to follow a set of changing rules and norms. The government needed to reach out to the public at this time more than any other, and legislatures can play a unique role in setting norms for the public for voluntary compliance in this way.

Third, for a number of institutional reasons, People’s Congresses give actors within the CCP a unique channel to speak to the public. This channel is unique both in the symbol of legitimacy it carries and in its ability to allow the Party to speak in an anonymous fashion: no particular political leader needed to associate him or herself with the legislatures’ announcements, while at the same time, arguably, legislative action can signal and declare political loyalty.

In a series of forthcoming blog entries, we will comment on some of the institutional backgrounds—many of which are unfamiliar to not only the public but even to legal communities—for understanding this wave of Chinese subnational COVID-19 legislation. We will also summarize some findings from our analysis of these legislative actions. Our investigation has two goals. The first is to identify features in the timing and format of local congressional actions, as well as potential interactions among them, that may be relevant to understanding their political motives. The second is to highlight those aspects of the provisions of COVID-19 local legislation that are likely to have substantial impacts in the short or medium term. Because the paths to vaccines and cures for COVID-19 and to economic recovery will take time to explore, and because lasting changes to economic and social institutions may occur as a result of the pandemic, our working assumption is that the legal framework set up by Chinese subnational governments in February-March 2020 will not soon be forgotten. We aim to identify new legal mechanisms of policymaking and implementation that is likely to be effective (or at least have an effect), and that is far less top-down than students of Chinese law are accustomed to.

Follow